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The Indiana Supreme Court held Thursday that Indiana’s second-chance laws that allow expungement of certain criminal convictions do not permit erasure of records of civil forfeitures connected to expunged charges.

Chief Justice Loretta Rush wrote for the court in determining a case of first impression that the Legislature didn’t intend to include civil forfeitures records and made no provision in the law for doing so found at I.C. § 35-38-9-1. Rush wrote that to hold otherwise would create unintended consequences, such as the inability of someone to expunge a civil forfeiture if they weren’t convicted of a crime, because the statutes require a criminal conviction.

“Indiana’s comprehensive new expungement statutes provide second chances by broadly allowing records from arrests, juvenile delinquency allegations, criminal charges, and misdemeanor and felony convictions to be expunged. But the plain meaning of the relevant expungement statute does not include civil forfeiture records,” Rush wrote for the unanimous court. Justice Robert Rucker concurred in the result without writing separately.

This case arose from a Madison County drug conviction in which D.A. was arrested by police in 2002 who made controlled cocaine buys. He was charged and convicted on possession and dealing counts and $720 was seized in a civil forfeiture related to the drug activity.

In 2014, D.A. petitioned for expungement, which was granted. However, Madison Superior Judge Dennis Carroll denied D.A.’s petition to expunge records of the civil forfeiture. A divided Court of Appeals reversed, with Judge Edward Najam writing for the majority that held the purpose of the statute would be frustrated if the relief was only partial and failed to expunge an associated forfeiture.

The justices aligned with the dissent of Court of Appeals Judge Michael Barnes, who wrote that the Legislature would have included forfeitures in the records that may be expunged, but has failed to do so even as the law has been revised since initial passage in 2013.

While the law doesn’t permit expungement of forfeitures, Rush used the opinion to reinforce the language of I.C. § 35-38-9-10(b), which prohibits discrimination because of a conviction that’s been expunged or sealed.

“Importantly, however, public access to these types of records does not diminish Section 10’s prohibition on discrimination based on an expunged conviction or arrest record. In fact, Section 10’s protection reaches all expunged convictions, even though conviction records from many felonies remain publicly accessible. So, public access to civil forfeiture records — or any other records that may somehow be linked to criminal activity — does not remove Section 10’s strong protection. In other words, discrimination based on an expunged conviction or arrest record is prohibited — even though the criminal activity may be referenced in publicly available records.“

Dave Stafford joined the staff of the Indiana Lawyer as a reporter in May 2012 and was named editor in October 2017. An award-winning print journalist for more than 30 years, Stafford has worked as a reporter and editor at newspapers including the Herald Bulletin in Anderson, Indiana, the News-Journal in Daytona Beach, Florida, and the Times-Dispatch in Richmond, Virginia. He and his wife, Denise, live in their hometown, Indianapolis.